Stakeholder Perspectives on CMS’s 2022 Notice of Benefit and Payment Parameters. Part 3: Consumer Advocates

The Centers for Medicare and Medicaid Services (CMS) released its proposed 2022 Notice of Benefit and Payment Parameters (NBPP) on November 25, 2020, and finalized some, but not all of its proposals on January 19, 2021 after a brief 30-day comment period. The annual NBPP is intended to outline rule changes CMS plans to adopt that govern the ACA marketplaces and insurance rules for each plan year. 

The CHIR team reviewed a selection of comments from various stakeholder groups that were submitted in response to the proposed rule, focusing on the following proposals, each of which were ultimately finalized:

  • New “direct enrollment” marketplaces
  • Marketplace user fees
  • Codification of Section 1332 Waiver “state innovation” guidance

We previously reviewed a selection of comments on these proposals from insurers and state officials. In the third and final blog of this series, we summarize comments from a number of consumer advocates, including the following organizations and coalitions:

Groups Disapprove of Proposal for “Direct Enrollment” Marketplaces 

Consumer advocates expressed unanimous discontent with a proposal to allow states to transition away from HealthCare.Gov’s centralized marketplace platform to a decentralized system of private enrollment platforms. This approach is modeled after Georgia’s recently approved section 1332 waivers, although in this case, states would not be required to go through the waiver process in order to move away from the federally facilitated marketplace (FFM). The proposed rule would require states to maintain a website that lists marketplace plan information, but consumers would not be able to enroll through that website. Instead, they would be directed to private websites to complete an application for coverage and financial assistance. 

Consumer advocates strongly opposed this measure, calling “a critical objective plan-finding and comparison tool” (Community Catalyst) for both consumers and enrollment assisters. They maintained that eliminating the FFM would “significantly undermine protections that ensure the quality and affordability of coverage for patients with pre-existing conditions,” (Coalition of Patient Advocates) and put large numbers of consumers at risk of either inadvertently enrolling in a junk plan or losing their coverage altogether. Several consumer advocates shared the concern that web brokers may be incentivized to engage in deceptive or misleading marketing practices that may cause consumers to enroll in short term limited duration insurance (STDLI) plans offering minimal coverage instead of comprehensive ACA-compliant plans. In particular, several advocates worried that Medicaid eligible enrollees may not be informed that they are eligible for free coverage, and will instead be steered toward enrolling in a costly private plan. 

Additionally, consumer advocates expressed concern that allowing states to adopt this change without a waiver violates a statutory requirement of the ACA, which requires a marketplace to “make available qualified health plans to qualified individuals” by maintaining a “an internet website through which enrollees and prospective enrollees of qualified health plans may obtain standardized comparative information on such plans” (NHeLP). Finally, several consumer advocates, including NPWF, YI, and NHeLP, expressed concern that forgoing the waiver process will deprive consumers of a public comment period, which they believe is necessary “to ensure public policies are developed using a transparent process with input from a wide array of relevant and affected stakeholders” (NPWF).

Advocates Oppose Reducing Marketplace User Fees

CMS proposed to reduce the FFM’s user fee, a fixed percentage of premium revenue paid by insurers, from the current level of 3 percent to 2.25 percent, and cut the user fee for state-based marketplaces that use the federal platform from 2.5 percent to 1.75 percent. The FFM user fee was previously reduced from its original 3.5 percent in the 2020 plan year.

Consumer advocates strongly opposed this measure, writing that “user fees are essential to operate the marketplace, improve the consumer interface, provide consumer support, fund outreach, and overall ensure a smooth enrollment system for consumers” (NHeLP). Multiple advocates cited recent budget cuts for outreach and enrollment services corresponding with drops in enrollment rates as evidence supporting the prioritization of these services. Further, several consumer advocates argued that “adequate outreach and advertising efforts about enrolling in health coverage should be especially valued during a pandemic,” (YI) and urged CMS to restore the user fee back to 3.5 percent in order to keep consumers well informed about enrollment and their respective coverage options throughout the duration of the COVID-19 pandemic.

Consumer Groups Share Concerns About Codifying 2018 Guidance on Section 1332 Waivers

The proposed rule attempts to codify a 2018 guidance that provides greater flexibility in the development and standards for the ACA’s Section 1332  waiver proposals. The guidance reduced consumer protections established under the Obama administration. For example, the 2018 guidance interprets the statutory requirement that a 1332 waiver cover a comparable number of residents as a measurement based on “access” to coverage, rather than actual enrollment.

Consumer advocates unanimously opposed this measure, writing that “encouraging the use of 1332 waivers according to the 2018 guidance is antithetical to the goals of the ACA and not a solution to address affordability or of access to coverage” (Community Catalyst). Many advocacy organizations argued that codifying the 2018 guidance is particularly unwise given the current public health crisis. In addition, several consumer advocates noted that codifying this non-regulatory policy by reference is “legally dubious.” Advocates urged CMS to cease pursuing this policy, or retract the current provisions and repost the 2018 policy through the full rulemaking process. In response, the final rule noted that these stakeholders and all other interested parties have had two opportunities to provide feedback on the proposed rule; first in response to the initial 2018 Guidance, and once again in December 2020. Taken together, the Departments argue that the comments have provided sufficient feedback, and have chosen not to alter any of the substantive policies or interpretations in the 2018 guidance.


Overall, consumer advocates opposed the Exchange DE option, reduced marketplace user fees, and the codification of the Trump administration’s 1332 guidance. Particularly given the current public health crisis brought on by the COVID-19 pandemic, advocates argued that making comprehensive coverage widely accessible and affordable for consumers should be a top concern. Each advocacy organization expressed concern that the policies outlined here have the potential to do the opposite, by unnecessarily compromising or even eliminating essential consumer protections and access to insurance coverage. 

A Note on Our Methodology

This blog is intended to provide a summary of comments submitted by some consumer advocates. This is not intended to be a comprehensive report of all comments on every element in the 2022 Notice of Benefit and Payment Parameters proposed rule, nor does it capture every component of the reviewed comments. To view more stakeholder comments, please visit


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